COMMENTARY

Right to Abort in
Surrogacy Contracts
An Enquiry
Shamba Dey

This article makes an enquiry into

the right to abort in surrogacy
contracts as visualised by the bill
on Assisted Reproductive
Technology drafted by the Indian
Council of Medical Research
and introduced in Parliament in
2010. It argues that the bills
anti-abortion clause raises
important questions of ethics,
fundamental rights as well as
legal remedies, if any, in the
event of a breach of contract.

urrogacy is a contract for services

which are highly personal in nature, and which are intended to
bring social and familial contentment to
the commissioning parents through
childbirth. Artificial reproduction gives
childless families a chance to fulfil a basic
human need, that would otherwise be
impossible to achieve. However, surrogacy
contracts raise several critical questions,
abortion being one of them.
The issue of abortion is essential inasmuch as it constitutes a breach of contractual obligations. The commissioning
parents contract with the surrogate and
take significant steps to set the gestational
process in motion, by relying on the
reasonable expectation that there would
be no abortion. If the contract is breached
by the surrogate, the parents are left without alternatives. Thus, one may assert that
the question of abortion, unless resolved
at the time of entering the contract,
might disturb the interests of the parties
along the nine months of the contract.
The draft Assisted Reproductive Technology (ART) Bill to regulate surrogacy which
was introduced in Parliament in 2010
made an attempt to resolve the issue of
abortion by mandating that any woman
agreeing to act as a surrogate shall be
duty-bound not to engage in any act that
would harm the foetus during pregnancy,1
thus offering some legal guarantee to the
commissioning parents. However, in the
opinion of this author, an anti-abortion
clause of this sort raises important questions such as who then has the right to
abort, can the law force the surrogate to
waive her right to abortion in advance,
and what remedies, if any, are available to
the parties in the event of such a breach?
Who Holds the Right to Abort?

Shamba Dey (s.dey.8788@gmail.com) is a

student of law at the University of Mumbai.

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This articles first contention to the antiabortion clause in the draft bill is that it

is in conflict with the constitutional

rights of the parties to a surrogacy contract. The commissioning parents have a
right to procreative freedom, which includes the right to contract with collaborators for the purpose of bearing children. Likewise, the surrogate has the
right to make an intimate personal decision about reproduction, which would
also include abortion. Although not enumerated in the Constitution, both the
right to procreation and the right to
abortion are two competing variants of
the right to life and personal liberty under Article 21 of the Constitution,2 they
represent a womans right to choose
whatever she does with her body3 and
hence, the choice to procreate or abort
should essentially belong to her if Article
21 has to have any meaning for her. However, unlike the right to procreation,
abortion refers to freedom from bondage
imposed by compulsory pregnancy.
The conflict between these rights can
arise in two situations. In the first situation, a surrogate may want to abort, but
the commissioning parents decide to defend their right to procreative freedom
by bringing a suit for specific performance of the contract. In this situation, it
needs to be determined whether a court
would impose an injunction upon the
surrogate, for the reason that if a surrogate has no right to abort, it amounts to
battery and undue hardship in the form
of physical imposition of compulsory
pregnancy and abrogates her right
against exploitation.
In the second situation, the commissioning parents may wish to abort the
foetus if they discover serious complications in prenatal or postnatal health of
the foetus or even for personal reasons.
If the commissioning parents intend
to get the foetus aborted, then the
surrogate may treat it as a breach of
contract. But when the surrogate decides
not to abort, then the dilemma that
courts would face is whether it is just
and proper to order an abortion-ondemand. If, instead, the court allows the
surrogate to carry the foetus till childbirth, then this may lead to unwanted
parenthood for the commissioning
parents, which is at least an equally
disastrous situation.

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COMMENTARY

Some proponents of surrogacy would

argue that the surrogacy contract was
entered into with the free will of the surrogate. Some others would argue that
the surrogate is in a relationship of trust
with the commissioning parents and such
duty of trust and loyalty requires that a
surrogate refrain from exercising her
personal interests against the interests
of the beneficiaries. Given this fiduciary
relation with the commissioning parents,
it may appear correct to compel a surrogate to fulfil her duties.
However, on a closer look, it is worth
noting that in traditional reproduction,
parenthood is not derived from mere
spousal relationship, but rather from the
intention of the couple, which means that
any decision to bear children is to be
mutually agreed upon by both partners.
At the same time, agreeing to an intercourse does not mean that the wife has no
right to abort. The law grants the decision
to abort exclusively to the woman and she
can terminate the foetus, if she so wishes.
If we were to treat traditional reproduction from the perspective of contract law,
it would mean that for the reproductive
process to be valid, free consent to carry
the foetus should exist throughout the
term of the contract, not just at the time
when the contract is made by the couple.
The moment this underlying consent
is lost, the contract of reproduction
stands breached and thereafter there is
no contract between the couple. If that
be so, then why should a surrogate, who
is only a substitute carrier, be deprived
of equal protection under law for the
same act? A surrogate undergoes the
same bodily conditions and mental associations with the foetus as is the case in
traditional reproduction and it would be
a legal fiction to claim that a surrogate
woman is not in the same position as an
ordinary woman. Since neither the husband nor parents can overrule a womans decision to get an abortion, the draft
legislation cannot give the right to
prevent abortion to the commissioning
parents or the courts.
A court may, however, use the principle
of state interest to protect a future child
and mandate that a surrogate cannot
abort (or even ask the intending parents
to accept the surrogates decision to
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bring a future child to life). In India,

Section 312 of the Indian Penal Code,
1860 makes it unlawful for a woman to
cause herself to miscarry, while Section 3
of the Medical Termination of Pregnancy,
1971 allows exercise of abortion rights
only under certain circumstances. The
imposition of state interest, however,
achieves nothing beyond restricting the
unlimited application of the abortion
right by the contracting parties and
interfering with their private choices.
No state interest can have enough
force to overturn a womans fundamental right of abortion and until the child
is brought forth from the womans body,
our relationship with it must be mediated
by her (Gallagher 1987). Moreover, since
a future child is a non-person, it can be
easily argued that no third person is
harmed when a surrogate chooses to
abort. Hence, no matter how compelling
the request of the commissioning parents
is, the constitutional validity of the surrogates right to abortion must be upheld.
Test of Ethics
To fully answer the question of who holds
the right to abort, one must also pass the
test of ethics. Many critics have held that
in surrogacy the interests of wealthy commissioning parents are better served than
those of the surrogates.4 Surrogates, especially in the third world countries like
India, belong to a lower socio-economic
segment and the monetary compensation
is necessary to motivate many women. As
the United States Supreme Court had

pointed out in the landmark case of

Baby M5 that the essential evil is...taking advantage of a womans circumstances, an anti-abortion clause would
therefore impose a totalitarian intervention into a womans life.
Hence, any disregard by the court of the
decisions of a surrogate will ultimately
subordinate the surrogate by establishing
the notion that her reproductive capacity
is a mere mechanical device, and may
create mala fide incentives to employ
poor women as providers of commercial
service to consumers. As Robertson writes:
whether one reproduces or not is central to personal identity, to dignity, and
to the meaning of ones life (Robertson
1994), it is to be understood that there is a
certain higher degree of priority attached
to this right, because it overtly appeals
to human nature and society and is greater in scope than a private contract and
greater in priority than the reproductive
autonomy of the commissioning parents
(Radin 1982). Further, since abortion
and surrogacy come under the realm of
family laws, merely using theories of commercial contracts to justify anti-abortion
clauses is not entirely correct. Due consideration should have been given to
these aspects in the draft legislation.
Can the Right to
Abortion Be Waived?
The doctrine of waiver is based on the
premise that a person is his best judge
and being so, he has the liberty to waive
the enjoyment of his rights. From the

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vol l no 2

17

COMMENTARY

literal meaning of Section 34(23) of the

bill, it seems that the intent of the law is
to require the surrogate to irreversibly
waive her right to abort in advance. Consent to a contract (an action that is inconsistent with the exercise of her right
to abort) may thus amount to an immediate forfeiture of her right. Many obiter
dicta from Indian courts, however, point
to the fact that there is a strong presumption against the waiver of constitutional rights. In Muthiah vs CIT, AIR 1956
SC 269, the Court held that it is not open
to a citizen to waive any of the fundamental rights.
These rights are not merely for the
benefit of the individual, but as a matter
of public policy for the benefit of the
general public. In Basheshar Nath vs CIT,
1959 AIR 149 1959 SCR Supl (1) 528, it was
held that there could be no waiver not
only of the fundamental right enshrined
in Article 14, but also of any other fundamental right guaranteed by Part III of
the Constitution. The Constitution made
no distinction between fundamental
rights enacted for the benefit of the
individual and those enacted in the public
interest or on grounds of the public policy.
There could, therefore, be no justification
for importing American notions or authority of decided cases to whittle down the
transcendental character of those rights,

conceived in public interest and subject

only to such limitations as the Constitution had itself thought fit to impose.
Article 13(2) was in terms a constitutional
mandate to the state in respect of all the
fundamental rights enacted in Part III
of the Constitution and no citizen could
by waiver of any one of them relieve
the state of the solemn obligation that
lay on it.
A precondition to waive a right in advance by consent, is that a person doing
so must not lack sufficient awareness of
the relevant circumstances and likely
consequences of the waiver. The judge
in the Baby M case indicated that surrogate never makes a completely voluntary, informed decision because any decisions prior to the childbirth are compelled, by contractual and monetary
concerns. The legislation has not given
much attention to this and probably presumed that consent to a contract is the
same as fully informed consent. To prevent this, it is preferred that the right to
abortion be preserved in whole and not
be waived irrevocably to the commissioning parents. Just as criminal defendants
cannot consent to irreversibly waive the
right to be present at trial in a capital case
or the right to plea incompetence to stand
trial or just as no person by consent can
waive his right to natural justice, so too a

surrogate must be allowed to change her

mind even after she has given her consent to waive her rights when she signed
the contract (Kreimer 1984).
In addition to this, if the surrogate does
not have the choice to exercise her bodily
integrity and personal will during the
time of service, then the commissioning
parents are not only purchasing the surrogates labour, but also acquiring rights
over her body for their benefit. Therefore,
it is important to ensure that the surrogate
is not under a binding agreement because
then the surrogate retains control over
her body while using it for the benefit of
the other party. If the draft legislation
makes an advance waiver provision
void, it would end many of the ethical
concerns over surrogacy. The right to
waive must exist in the bill, but at the
same time, a provision should be there
to exercise the right any time later in
the contract. Thus, the surrogate can
opt not to avail herself of her right to
abort or to carry her life in whatever
way she wants.
Remedies for Breach of Contract
Commercial surrogacy has been a legal
practice in India since 2002, and the ART
Bill allows the payment of any sum of
money to the surrogate other than that
which is needed to meet her medical and

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COMMENTARY

insurance costs. In a surrogacy contract,

the commissioning parents also normally
pay the surrogate sums of money over
regular intervals and reserve a certain
sum of money as the final payment after
the child is delivered. The surrogate is
denied the final payment if she aborts.
The obvious question then is whether
this final payment is to purchase the title
rights to the newborn child.
The Supreme Court of Kentucky in
Surrogate Parenting vs Com Ex Rel
Armstrong 704 SW2d 2o9 (Ky 1986) considered whether a distinction could be
drawn between payment for gestational
services and payment for the title rights
to the child. The court held that payments to the woman under a surrogacy
contract were for her services, not the
baby. The premise used by the court was
where a woman could not be forced by
contract to forgo her parental rights,
there was no selling of the baby. In
Indias ART Bill it is settled that a surrogate must relinquish parental rights,6
which will only logically follow when we
presume that there is a sale of the baby.
The author believes that no rational
parents who arrange for surrogacy
would like to admit either that the price
paid is the price of the child, but rather
this payment is just an end reward or fee
for the services of the surrogate. Such an
admission, however, leaves the commissioning parents with no remedy against
the surrogate who aborts against their
wish. To earn damages, the commissioning parents would have to show the
court that they lost some value or worth.
But this means that the court would
have to calculate the monetary value of
a pregnancy and then put a price on the
child. This is highly utopian and also
unethical, and no court would allow this.
Some surrogacy proponents may argue
that a reasonable monetary penalty
should be imposed upon the breaching
surrogate (as is the practice in many other
contracts), but considering the subjective nature of a parents association with
a newborn child, the author believes
that no amount of penalty would really
leave the disheartened parents satisfied.
Hypothetically, even if there is such an
amount that could satisfy the parents,
it would probably be very large. If the
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january 10, 2015

contract in itself contains a clause for

payment of penalty by the breaching
surrogate, then the immediate question
that comes to mind is how and by what
methods the commissioning parents
determined the penalty amount. Clearly,
a predetermined penalty could be the
disguised price of the newborn child.
Thus, simply put: where the surrogates
service gets interrupted by abortion, no
damages would probably be available to
the parents; the latter should, from the
time of entering into contract, compulsorily take on the risk that the surrogate
may not carry the child to term. With regards to the sums already paid to the
surrogate, it is unlikely that any claim
for recovery will be sustained given that
in a personal services contract, the party
not in breach accepted the performance of the party in breach until the date
of breach, and has an obligation to
pay for such performance. If the sum
promised is in the nature of a reward, it
may not be paid; but if such sum is in the
form of fees, then the surrogate may
claim part-payment for the duration of
service she provided.
In the circumstance where the surrogate ignores the parents demand for
abortion, the commissioning parents
should be absolved of their obligation to
pay rewards, fees or any other costs for
the surrogate, otherwise it would be
highly inequitable for the parents who
no longer have a contract or expect to
have a child. The surrogate, in turn,
should from here on assume all the risks
and expenses associated with the gestation and future custody of the child, similar to a woman in traditional reproduction who carries her foetus to term and
bears all costs and custody, when she
goes against the wishes of her husband.
Just as the legislation ought to uphold
the surrogates personal decision not to
abort, it should also provide the surrogate full legal parenthood rights over the
child where the parents walk out of the
contract, overriding Section 34(4) of the
Bill. This will serve two purposes, (a) it
will counterbalance the risk that the
commissioning parents have already
taken assuming the surrogate might
abort, and (b) it will act as a deterrent
to the surrogate who after all was not
vol l no 2

willing to add another child to her household in the first place. Alternatively, legislation or courts may allow the surrogate
to put the child up for adoption.
Conclusions
India being a favourite destination for
fertility tourism, it is important for the
legislative and judicial arm to see that,
while on the one hand, the letter of the
law changes to keep up with changing
scientific evolutions and social experiments, on the other, adequate controls
are inserted to fortify the spirit of law.
The enforceability and validity of surrogacy contracts is not under question because of its immense benefits but the implications of any legislation on anti-abortion that operates against the constitutional rights of the contracting parties
need to be reconsidered. Rules that pass
up enhanced controls might come to be
accepted considering the value-shaping
effect of law, but we must not stop
questioning whether these values are in
consonance with the more deeply-felt
and universal notions of human good
and behaviours.
Notes
1

5
6

Section 34 (23) of Draft ART Bill, 2010, Division of Reproductive Health and Nutrition, the
Indian Council of Medical Research, available
at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf
To give meaning and content to the word life
in Article 21, it has been construed as life with
human dignity.
This is derived from common law antecedents.
See, e g, Vacco vs Quill, 117 S Ct 2293, 2301
(1997).
Washington Post, 17 February 1987, at A17,
col 3; See, Akker (2005) (discussing inequalities between surrogates and contracting mothers on socio-demographic variables).
In re Baby M, 537 A.2d 1227 (NJ 1988).
Section 34(4) of ART Bill, 2010.

References
Akker, Olga (2005): A Longitudinal Pre-Pregnancy
to Post-Delivery Comparison of Genetic and
Gestational Surrogate and Intended Mothers:
Confidence and Genealogy, 26 J Psychosomatic
Obstetrics & Gynecology, 277, 281.
Gallagher (1987): Prenatal Invasions & Interventions: What's Wrong with Fetal Rights,
10 Harvard Womens Law Journal 9, 37, 57.
Kreimer (1984): Allocational Sanctions: The Problem
of Negative Rights in a Positive State, UPenn
Law Review, 132.
Radin, Margaret (1982): Property and Personhood,
34 Stanford Law Review.
Robertson, John (1994): Children of Choice: Freedom
and New Reproductive Technologies (Princeton:
Princeton University Press).

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